Judgement Appeal from a decree of the above Court (July 23, 1906) reversing a decree of the Subordinate Judge of Sitapur (August 3, 1905). The appellant sued on March 12, 1902, to recover from the respondents an eight-anna share of mauza Bambhauri as the son and heir of Muzaffar Ali, who died in 1890 entitled thereto, and left him surviving his brother, a childless wife, and Phundan, who claimed to be his second wife, the appellant claiming as her son. The respondents pleaded that Phundan was never married to Muzaffar Ali and that the appellant was therefore illegitimate. The First Court found that Phundan was originally a public prostitute and that her marriage with Muzaffar was improbable and incredible, but nevertheless found that the appellant was their legitimate son. It relied upon the presumption arising from long cohabitation and upon evidence of sundry acknowledgments by Muzaffar Ali of Phundan as his wife. The material part of its judgment was as follows — "I cannot believe for a moment that a man of the position and means of Muzaffar Ali Khan, finding himself childless from his wedded wife Zohra, took it into his head to propose to a prostitute or the daughter of a prostitute..... "The strongest presumption is that he saw her dancing somewhere, became enamoured of her, and took her for his concubine or wife. Now the only thing to be seen is whether it was in the capacity of a concubine or in that of a wife that he took her. I am induced to believe that it was in the capacity of a wife that he took her. The reasons to this conclusion are that a prostitute would not confine her behind the purdah unless she was of her position (sic), and secondly there is evidence of Haji Abbas Husain Khan of Babupur and Sheikh Inayet-ul-lah himself, a taluqdar and a leading man of the province, that the Chaudhri (Muzaffar Ali Khan) admitted before them that he had espoused Phundan as his wife. Since she was not seen out of the purdah or carrying on the avocation of a public prostitute or dancing girl. Every Indian knows that second marriages, particularly with women like Phundan, are not carried on with song or mirth. The treatment, which she received afterwards at the hands of her husband was of the most cordial nature. Since she was not seen out of the purdah or carrying on the avocation of a public prostitute or dancing girl. Every Indian knows that second marriages, particularly with women like Phundan, are not carried on with song or mirth. The treatment, which she received afterwards at the hands of her husband was of the most cordial nature. Her daughters were married with pomp befitting the occasion, position and means of the family in some of the best of families of Khanzadas (Ghani Ahmad and his brother). That a brother of Ghani Ahmad repudiated his wife does not shew that he had married her for money or property. Exhibit A-l proves that Muzaffar Ali admitted that a nikah had taken place between him and Musammat Phundan—if it was not Musammat Phundan who else she was. The plaintiffs are unable to point out any one else. On April 26, 1883, Muzaffar Ali deposed before Mr. Lincoln, District Judge, that he had another wife of the family of prostitute, the daughter of Badar Ali or Baddi Ali, who was a Pathans son ; nikah had taken place between them. It is clear that when this statement was made there was no question of the succession to the property of Muzaffar Ali and no necessity for him to speak untruth at the time in respect to his wife and children. If the admission does not operate as an acknowledgment and even if it amounts to acknowledgment it is not sufficient to make the woman the wife of a man, still it is a strong evidence of a deceased persons relation with a woman. Much has been made of the fact that about thirty years ago Phundan was seen dancing at several places, while the date of her marriage or nikah is given as Shawal, 1870. The very nature of the reply or statement shews that it is a mere matter of guess. The month is Arabic and the year English. It is uncon ceivable that a woman remembered the Arabic month and English year of her marriage. The very nature of the reply or statement shews that it is a mere matter of guess. The month is Arabic and the year English. It is uncon ceivable that a woman remembered the Arabic month and English year of her marriage. In the second place, though a woman might not be living habitually in seclusion or behind the purdah, she is invariably kept in purdah at the time of her nikah, and under such circumstances she is not in a position to know who the agent (vakil) and the witnesses of the nikah are, nor she is expected to remember the year of her nikah. Now, when Muzaffar Ali made the statement before Mr. Lincoln, Ghazanfar Ali was not born, and his birth after the admission of nikah by his father with his mother makes him legitimate if nothing else. Daryao Lal says that Ghazanfar Ali must have been born in 1887. Colonel Grigg was of opinion that Ghazanfar Ali was born about a year and half before the death of Muzaffar Ali, which took place in 1890. Plaintiffs own witness Zamin Husain says that on the occasion of his daughters marriage he invited the witness, telling him in the invitation letter that his daughters were going to be married and he cheerfully bore the expenses and managed the marriage of his daughters with Ghani Ahmad and Ali Ahmad, Khanzadas. I therefore find that Ghazanfar Ali is the legitimate son of Muzaffar Ali Khan." The Judicial Commissioner, on the other hand, considered all the facts at length and the inferences to be drawn from the facts and concluded his judgment in the following terms —" The above considerations lead to the conclusion that in spite of the fact that there may be a presumption of legitimacy owing to the admitted fact that Muzaffar Ali Khan and Musammat Phundan cohabited together as man and wife from about 1875 to 1890, and that Muzaffar Ali Khan had on several occasions acknowledged Musammat Phundan as his wife, yet there is absolutely no reliable evidence of any kind of the celebration of any legal marriage in 1870, and for reasons given above there is every ground for believing that cohabitation between Muzaffar Ali Khan and Musammat Phundan did not, as a matter of fact, commence before 1875. I would, therefore, decide that Ghazanfar Ali Khan is not proved to be the legitimate son of the deceased, and his suit to recover possession of the share in Bambhauri should have been dismissed." Ross and Dube, for the appellant, contended that the First Court was right on the evidence in finding that his legitimacy was established. They relied on the presumption arising from long cohabitation and on the evidence as to acknowledgment. They referred to Khajah Hidayat Oollah v. Rai Jan Khanum (( 1844) 3 Moo. Ind. Ap. 295.); Mahomed Banker Hoossain Khan v. Shurfoonnissa Begum ((I860) 8 Moo. Ind. Ap. 136,159.); Ashrufooddowlah Ahmed Hossein Khan v. Hyder Hossein Khan (( 1866) 11 Moo. Ind. Ap. 94.); Wise v. Sunduloonissa Chowdhranee (( 1867) 11 Moo. Ind. Ap. 177,194.); Khujooroonnissa v. Rowshun Jehan (( 1876) L. R. 3 Ind. Ap. 291, 311.); Muhammad Azmat Ali Khan v. Lalli Begum, (( 1881) L. R. 9 Ind. Ap. 8.) De Gruyther, K.C., and Kyffin, for the respondents, contended that there was a concurrent finding that there was no direct evidence at all as to a marriage between Muzaffar and Phundan. The High Court was right in holding that under the admitted circumstances of the case no presumption in its favour arose from the long cohabitation relied upon. The evidence of acknowledgment was not such as could be safely acted upon, and the evidence of repute was only to the effect that Ghazanfars two sisters, daughters of Phundan, had been married to respectable Mahomedans as if they also were legitimate. They relied upon Mahomed Bauker Hoossain Khan v. Shurfoonnissa Begum (8 Moo. Ind. Ap. 136), and a passage cited from Sir R. Wilsons Digest of Mahomedan Law, 3rd ed., p. 162, par. 84, and Ashrufooddowlah Ahmed Hossein Khan v. Hyder Hossein Khan. (3) Ross in reply. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of Oudh, which overruled the decision of the Subordinate Judge of Sitapur. The suit out of which the appeal arises was brought by the present appellant in the last-mentioned Court to establish title to and recover possession of an eight-anna share in the village of Bambhauri, the plaintiffs claim being based upon his alleged right to recover the property in question as heir to his father, Chaudhri Muzaffar Ali Khan. The suit out of which the appeal arises was brought by the present appellant in the last-mentioned Court to establish title to and recover possession of an eight-anna share in the village of Bambhauri, the plaintiffs claim being based upon his alleged right to recover the property in question as heir to his father, Chaudhri Muzaffar Ali Khan. About the parentage of the appellant there is no dispute, and of all the questions raised in the case one only remains for consideration on the present appeal, and that is whether the appellant is to be regarded as the legitimate son of his other. On this question the Subordinate Judge decided in the appellants favour, but he was overruled by the Court of the Judicial Commissioner. Their Lordships are of opinion that the learned judges of that Court were right. It may be stated at once that the sole question is whether on the evidence in the case, coupled with all legitimate presump tions, it is shewn that the appellant was born in wedlock. No question has been raised either in India or before their Lordships—such has been raised in many cases—as to any possible legitimation by subsequent acknowledgment or treatment. There was no evidence of marriage between the parents of the appellant. The learned judges fully recognized that prolonged cohabitation might give rise to a presumption of marriage, but that pre sumption is not necessarily a strong one, and their Lordships agree that it does not apply in the present case, for the mother before she was brought to the fathers house was, according to the case on both sides, a prostitute. The learned judges next notice certain instances in which the deceased father is said to have acknowledged the mother as his wife, but the effect of such acknowledgment has been rightly estimated by the learned judges. The next point relied upon by the appellant was that two of his sisters, whose legitimacy was as much open to question as his own, were married to respectable men, and the marriages conducted with due formalities. This is a point worthy of consideration, but it would be easy to attribute too much weight to it. Their Lordships are of opinion that the decision of the Judicial Commissioners Court was right. They will humbly advise His Majesty that this appeal should be dismissed. The appellant will bear the costs.